It is interesting to note that – in contrast to the SCM Agreement’s distinction between the set of ‘prohibited’ subsidies on the one hand, and the set of ‘non-actionable’ and ‘actionable’ subsidies on the other – the draft text on fisheries subsidies uses only the concepts of ‘prohibited’ and ‘not prohibited’ subsidies.
What then is the exact legal status of ‘not prohibited’ subsidies in the draft text? Are such subsidies ‘non-actionable’ in the classic sense of the SCM Agreement?
On the basis of the structure of draft Annex VIII, it appears in fact that ‘not prohibited’ fisheries subsidies remain potentially subject to various disciplines, and are therefore still ‘actionable’ if they produce certain adverse effects.
First, Article IV of the draft text entitled General Discipline on the Use of Subsidies stipulates that “[n]o Member shall cause, through the use of any subsidy [...] depletion of or harm to, or creation of overcapacity” in respect of certain fish stocks. As indicated by the term ‘any’, every fisheries subsidy, including a ‘not prohibited’ subsidy, falls within this general discipline. Moreover, since the draft text is an integral part of the SCM Agreement, it appears that SCM Article 5 relating to ‘actionable’ subsidies applies to the category of ‘not prohibited’ fisheries
subsidies. That article states clearly that “[n]o Member should cause, through the use of any subsidy [...] adverse effects to the interests of other Members.” Once again, the term ‘any’ implies that ‘not prohibited’ fisheries subsidies fall within the disciplines of Article 5 if they cause one of the adverse effects mentioned under this provision .
In sum, even if there is no real ambiguity about ‘not prohibited’ fisheries subsidies being nevertheless actionable, it would be perhaps make sense to use in the draft text an expression other than ‘not prohibited subsidies’. This would allow for more coherence with the rest of the SCM Agreement. Alternatively, a footnote could indicate that ‘not prohibited’ fisheries subsidies are still ‘actionable’ in the sense of Article 5 and, of course, under Article IV of the draft fisheries annex.
NB: For more analysis on the draft text on fisheries subsidies, my recent article in BRIDGES might interest some readers.
